Appellate Rules Violations

Last month, Beth blogged about an opinion from the Court of Appeals dismissing an appeal for eight appellate rules violations. This month, the Court withdrew its opinion, issued a new opinion finding seven-ish appellate rules violations, and dismissed the appeal again.

The returning case is Ramsey v. Ramsey, a family law case involving a contempt order. Beth had noted that certain of the eight errors identified by Judge Zachary—including compliance with the deadline to file the record on appeal—may not have been rules violations.… Continue Reading

Last year, my colleague Kip Nelson warned about the risks of failing to provide a fulsome “statement of the grounds for appellate review” in an appellant’s brief, as required by N.C. R. App. P. 28(b)(4).

In the deliciously named Larsen v. Black Diamond French Truffles, Inc. case from last year, the North Carolina Court of Appeals warned of the jurisdictional significance of failing to include this statement in an opening appellant’s brief. … Continue Reading

Yesterday’s blog post focused on how the Business Court Modernization Act only applies to “actions designated as mandatory complex business cases on or after” October 1, 2014.  See Session Law 2014-102.  As that post demonstrated, the timing of when a case is designated to the North Carolina Business Court can create different (and unusual) pathways to appellate review.

This follow-up post focuses on the phrase “designated as a mandatory complex business cases,” as that phrase is used in Session Law 2014-102 to determine to which appellate court a Business Court appeal should be taken.  … Continue Reading

Over the past few months, we have shared several  potential problems created by the Business Court Modernization Act.  Nonetheless, we held a few potential traps close to our vest because, frankly, we were unsure if any of the unique circumstances necessary to trigger the traps would arise.  Recently, we changed our mind on the improbability of those scenarios based on an October 8 order from the North Carolina Business Court. … Continue Reading

Yesterday the North Carolina Court of Appeals issued what I am going to be so bold as to call the most highly anticipated opinion in 2015 for appellate practitioners. For those new to the Ehrenhaus discussion, take a look at our prior posts here and here and here. The central question is whether the provision in Appellate Rule 3 requiring that a notice of appeal be filed “with the clerk of superior court” can, in a North Carolina Business Court case, be satisfied by e-filing the notice of appeal through the Business Court website, or can only be satisfied by timely filing of the notice of appeal with the clerk of superior court in the case’s “home county.”… Continue Reading

In March, we blogged about a chart  summarizing post-Dogwood opinions involving appellate rules violations.  Drew and Carrie may be adding another entry to their chart.  In an opinion authored by Judge Tyson, the Court of Appeals dismissed yet another appeal for non-jurisdictional violations.

In re Gutowski involved two pro se appellants’ challenge to a superior court order allowing a bank to foreclose on, and ultimately sell, the appellants’ residence after they defaulted on their mortgage. … Continue Reading

Last week the North Carolina Court of Appeals dismissed an appeal based on what it described as “substantial noncompliance” with the appellate rules. The dismissal in Smith v. North Carolina Department of Public Safety involved two non-jurisdictional defects—Appellant’s failure to cite legal authority in a brief and Appellant’s failure to provide a transcript of the proceeding from which this appeal arose.… Continue Reading

How is that possible?  The scenario is actually quite simple:

Timely Filed Notice of Appeal + Timely Date on Certificate of Service + Untimely Postmark Date.

Rule 3(a) of the North Carolina Rules of Appellate Procedure sets forth the rule for “Filing the Notice of Appeal.”  A timely filed notice of appeal, however, does not always equate a timely noticed appeal. … Continue Reading

On March 7, 2008, the North Carolina Supreme Court issued Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co.,  probably the most important appellate rules opinion of its time.  We have, over the years, often blogged about cases in which Dogwood has affected the Court of Appeals’ approach to appellate rules violations.  As we approach the seven-year anniversary of Dogwood, the NCBA’s February 2015 Per Curium newsletter includes an excellent follow-up article by Drew Erteschik and Carrie McMillan entitled “Checking in on Dogwood: A Brief Retrospective.” … Continue Reading

While this blog is normally confined to appellate cases and issues,  in a recent “text order,” Judge Catherine Eagles of the Middle District of North Carolina fired a warning shot regarding MDNC briefs that mirrors what we often hear from appellate judges.  Formatting and detailed legal and record citations matter, and the Court is not going to help lazy lawyers who are unwilling to do the work themselves!  … Continue Reading